Section 108 of the UK’s Deregulation Act 2015 provides that regulators may be required to “have regard to the desirability of promoting economic growth.” What this means is that they must

in particular, consider the importance for the promotion of economic growth of exercising the regulatory function in a way which ensures that—
(a) regulatory action is taken only when it is needed, and (b) any action taken is proportionate.

On the face of it this looks potentially reasonable – it is about encouraging regulators to make sure that regulation is necessary and proportionate (of course regulation should be proportionate and why would you ever want unnecessary regulation). But it isn’t clear how these terms are going to be interpreted, or whether the number of potential targets for this approach is small or large (for some concerns, see here). The provision has the potential to cause significant harm to all of the interests regulation is supposed to protect – and this is even before the TTIP regulatory cooperation measures are used to limit regulation. The UK can do it all on its own.

In Belhaj v Straw the English Court of Appeals (the Master of the Rolls, Lord Dyson, Lord Justice LLoyd Jones (who was the principal drafter of the judgment of the court) and Lady Justice Sharp) have allowed a range of claims that Jack Straw, Mark Allen, the FCO and the Home Office were involved in unlawful renditions to Libya (involving allegations of torture) to proceed. The Court rejected arguments (which had succeeded in the court below, although the Judge, Simon J. expressed some concern) that the acts complained of implicated the act of state doctrine which makes acts of a foreign state on its own territory non-justiciable in English courts. The Court of Appeal found that the act of state doctrine did not prevent the litigation because it involved claims of violations of international law and fundamental human rights and because the alleged acts perpetrated by the US took place outside the US. The Court of Appeal noted that English law did not require deference to the views of the executive as to the likely impact of exercising jurisdiction on foreign relations (in contrast to the situation in the US). The question was whether the court should go beyond precedent and hear a case which would require an investigation into the validity of the conduct of a foreign state (all of the claims would involve an assessment of acts of foreign states).

The Court said:

a fundamental change has occurred within public international law. The traditional view of public international law as a system of law merely regulating the conduct of states among themselves on the international plane has long been discarded. In its place has emerged a system which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects. A corresponding shift in international public policy has also taken place… These changes have been reflected in a growing willingness on the part of courts in this jurisdiction to address and investigate the conduct of foreign states and issues of public international law when appropriate….The abhorrent nature of torture and its condemnation by the community of nations is apparent from the participation of states in the UN Convention against Torture (to which all of the States concerned with the exception of Malaysia are parties) and the International Covenant on Civil and Political Rights (to which Libya, Thailand, the United States and the United Kingdom are parties) and from the recognition in customary international law of its prohibition as a rule of jus cogens, a peremptory norm from which no derogation is permitted. While it is impermissible to draw consequences as to the jurisdictional competence of national courts from the jus cogens status of the prohibition on torture… it is appropriate to take account of the strength of this condemnation when considering the application of a rule of public policy….there is a compelling public interest in the investigation by the English courts of these very grave allegations. The only ground on which it could be contended that there is any exemption from the exercise of jurisdiction in the present case is because of the alleged involvement of other states and their officials in the conduct alleged. Notwithstanding our view that the present proceedings would entail an investigation of the legality of the conduct of those foreign officials, the fortuitous benefit the act of state doctrine might confer on the respondents is a further factor supporting the application of this public policy limitation.

Nasdaq effectively takes the position that it should not have liability for its failings because the for-profit exchanges are too critically important to have to potentially stand up for their errors, while brokers who fail as a result of poor planning must pay for their failure. This is an unlevel playing field premised on an outdated construct of exchanges as bastions of market integrity, rather than the for-profit corporations that they are today.

SIFMA is of the strong belief that Nasdaq did not act in an SRO capacity in carrying out the Facebook IPO. Rather, we believe Nasdaq was operating solely in its role as a for-profit market participant. In this regard, we note that Nasdaq received the Facebook listing, and its attendant listing fees, after a hard-fought competition with the New York Stock Exchange to gain Facebook’s listings business.

The EESC announces that it is going to get more involved in discussions about financial regulation:

One of the difficulties in adopting rules in this field has been, and still is, how to ensure that differing and contradictory positions are given a balanced hearing within a pluralistic and democratic opinion-forming process. There is currently no effective counterweight from civil society organisations to the legitimate representation of the financial sector’s interests, and this asymmetry should be rectified in the new financial legislation.

And it urges the EU institutions and the Member States to act “to achieve wider involvement of civil society in the regulation of financial markets”.

Why, on recent flights between Miami and Newark, was it necessary for the pilot to threaten passengers that the flight would not be able to land or take off if they did not comply with instructions to turn off electronic devices (I know there’s controversy about whether this requirement is necessary but it is a requirement and non-compliance imposes costs on the passengers who do comply)?

Why is the SEC backdating documents (OIG Report stating the SEC’s Office of Administrative Services backdated a justification an approval of the SEC’s lease of premises)?

Is there a connection between citizens’ carelessness about paying attention to the rules and a regulatory agency’s carelessness about compliance with formalities? I suspect so.

MPs were arguing (and arguing… they carried on for hours) about parliamentary sovereignty yesterday. Proponents of amendments to the European Union Bill to strengthen and emphasise parliamentary sovereignty (they lost) are most bothered by the EU itself (characterised by one speaker as having “tentacles”) and by judges who don’t seem to know their place (and who should see themselves as subject to removal by MPs if they don’t behave themselves). Here’s Bill Cash:

The threat comes not only from the common law radicalism of such judges but from the EU law itself, which claims constitutional supremacy over member states’ constitutions. We have also seen cases of terrorists appearing to get away with things and people not being deported when they should have been, as well as a whole range of other matters occurring under the European Human Rights Act, which, as I have said, is mirrored by the new charter of fundamental rights in the Lisbon treaty. We are witnessing a vast increase in the volume and impact of such legislation on the British people, and this is resulting in the anxieties I have described. Those anxieties could be allayed by my amendments, however, and it is time for us to turn the tide and make it clear exactly where we stand.

But Malcolm Rifkind made a pretty good point when he said:

The sovereignty of Parliament was not created by an Act of Parliament, and it has never depended on an Act of Parliament. How can its restatement in an Act of Parliament given any real added value to its legitimacy?

And others noted press reports suggesting the whole thing is a matter of shadow-boxing or smoke and mirrors. And, although Dennis MacShane tried to inject some truth about what the UK’s membership really involves:

I put it gently to hon. Members that they should be careful before getting what they wish-the disaggregation of the European Union, with every country rejecting European Court of Justice decisions that they do not like. France believed that it was sovereign when it refused to accept a pound, or a kilo, of British beef, at the time when the whole world thought that the beef was contaminated. We could not export it to Australia, and Canada would not accept it. The Commonwealth would not have it. Hong Kong, our Crown colony, would not have it. But the European Union had to accept British beef because the European Court of Justice accepted our scientific arguments that the beef was fit for sale in the common European market

the debate involved a lot of rhetorical flourishes and veered between competition to see who could quote more Latin to discussions of dead parrots. Not an inspiring read. And not a great legitimation of the concept of parliamentary sovereignty either.

Fiji has admitted losing the legal document confirming its independence from the United Kingdom. But does that threaten its existence as a state?

Although the article compares this lost legal document to a lost birth certificate, it is more like a lost copy of a divorce decree. After all, a birth certificate is evidence of the notification of a physical fact (which exists independent of any formal evidence of that fact), whereas the legal document Fiji lost was evidence of a change of status.

The UK’s Department of Business, Enterprise and Regulatory Reform is merging with the Department for Innovation Universities and Skills to create a new department for Business Innovation and Skills (BIS). It’s not obvious what the point of this rebranding is. BERR isn’t even two years old – it replaced the old DTI in 2007. The reaction at science business isn’t exactly a ringing endorsement:

The announcement of the new department does not say if the remit of DBIS includes rearranging the canvas covered collapsible seating on the decks of large ‘unsinkable’ ocean-going liners at risk of hitting an iceberg.

I just got back to Miami from the Law and Society conference in Denver, where I talked about my paper on credit rating agencies and heard about a lot of interesting work on regulation and governance in general and the financial crisis in particular. At the hotel where I stayed, part of a large chain, they had one of those environmental programmes which invited guests to re-use towels and sheets. These programmes don’t seem to me to work perfectly – even if you hang up the towels they sometimes seem to get replaced, and the rooms aren’t always adapted well to the need to hang up a used wash cloth, for example. I don’t mean that such programmes aren’t genuinely intended to be environmentally friendly, but the PR may be more splashy than any real impact. So this makes me wonder (and not for the first time) how real much corporate social responsibility is.